Posts Tagged ‘assisted suicide’

Retired truck driver Robert Baxter, a Billings, Montana, resident, was dying of leukemia. He wanted to be able to choose the time and manner of his own death, and he turned to his physicians. He asked for a lethal dose of medication; his doctors sympathized, but declined to give him the prescription he wanted. They were concerned, they said, that doing so might expose them to criminal charges for assisting Mr. Baxter to commit suicide.

While suicide itself is usually not illegal, assisting another person to commit suicide is a crime in most American states. With the exception of Oregon and Washington (where state voter initiative actions have expressly legalized physician-assisted suicide in narrow circumstances), the notion of what is often called “physician aid-in-dying” has run up against the assisted-suicide prohibition.

Mr. Baxter and his physicians, with the assistance of a group called Compassion & Choices, decided to do something about Montana’s law. They asked the courts for an order recognizing Mr. Baxter’s rights under the Montana Constitution to seek his physicians’ assistance in ending his life, and those physicians’ authority to respond to his request.

In December, 2008, a state trial judge agreed, ruling that Montana’s Constitution promised its citizens both dignity and privacy. Those guarantees, said the judge, extended to the right of a physician to prescribe a lethal dose of medications. The Montana Attorney General appealed the ruling to the state’s Supreme Court.

On December 31, 2009, the state high court affirmed the trial judge’s ruling — though it used different logic to do so. Noting that it is always preferable to resolve issues without relying on Constitutional analysis if possible, the court ruled that Montana law would prevent the prosecution of a physician authorizing a lethal dose of medication for a competent, terminally ill patient requesting that prescription.

The court’s statutory analysis focused on the doctrine of “consent.” A patient who requested the lethal prescription has consented to the doctor’s actions. That would prevent a criminal prosecution, so long as the consent did not violate public policy — and the high court determined that no public policy considerations would be affected.

This circumstance can be distinguished, said the court, from the case of a noisy, dangerous fight between bar patrons who might “consent” to one another’s assault. No other individuals, and therefore no legitimate public policy, would be endangered by allowing physicians to respond to a patient’s request. Baxter v. State, December 31, 2009.

The Montana Supreme Court decision was not unanimous. Four of the seven Justices agreed with the majority opinion authored by Justice W. William Leapheart (one of those four, Justice John Warner, wrote separately to urge the Montana Legislature to take up the issue and resolve any uncertainties). One, Justice James C. Nelson, would have gone further — he argued for upholding the trial court’s Constitutional analysis. Two (Justice James A. Rice and District Judge Joe L. Hegel, sitting as a special Justice) would have reversed the trial court and found that “physicians who assist in a suicide are subject to criminal prosecution.”

Ironically, Mr. Baxter did not benefit directly from the court’s ruling. He died in 2008, the same day the trial judge ruled in his favor, and without ever having learned of his victory in either the trial court or the state Supreme Court.

In 1994 and again in 1997, Oregon voters approved the first law permitting physician-assisted suicide in the U.S. In each of the six years since the law was implemented, about 30 terminally ill Oregon residents have used the “Death With Dignity” Act to end their lives with the help of physicians. It is not easy to comply with the Act’s terms; it is available only to long-time Oregon residents who are terminally ill, and it requires psychological assessment of the patient and consistent requests over time. It also requires a sympathetic and cooperative physician to prescribe medication and a pharmacist to dispense the lethal dosage of drugs.

U.S. Attorney General John Ashcroft has made clear his disapproval of the Oregon law. In November, 2001, Mr. Ashcroft issued a Directive to officers of the federal Drug Enforcement Administration. The Directive insists that physician-assisted suicide serves no legitimate medical purpose, and instructs the DEA to prosecute any physician who prescribes a lethal dose of narcotics or other “controlled substances.” It also directs prosecution of any pharmacist filling such a prescription, and effectively threatens both physicians and pharmacists with loss of professional licenses if they utilize the Oregon law.

A physician, a pharmacist, several terminally ill patients, and the State of Oregon brought suit in Oregon Federal Court to have Mr. Ashcroft’s Directive rendered invalid. They argued that Mr. Ashcroft had no business interfering in the doctor/patient relationship, and no authority to impose his views of proper medical care on state governments.

Judge Robert E. Jones of the Federal District Court in Oregon agreed, and permanently enjoined the Attorney General from enforcing his own Directive. Mr. Ashcroft appealed that ruling.

The Ninth Circuit Court of Appeals affirmed Judge Jones’ ruling. The appellate court noted that the Controlled Substances Act, on which Mr. Ashcroft had relied for his Directive, was intended to combat drug abuse, not to regulate medical care. That job should be left to the states, according to the ruling, and until Congress acts the Attorney General is powerless to enforce his Directive. Besides, as the appellate court pointed out, Mr. Ashcroft is a lawyer, not a physician, and he and his office are poorly qualified to make medical decisions. Any role the administration is to have in medical decisions should be voiced by the Department of Health and Human Services, not the Attorney General.

One other problem with the Directive, said the two judges in the majority, is that it does exactly what Mr. Ashcroft intended it to do. Because of the fear of prosecution or loss of license, the Directive would have a chilling effect on physicians, pharmacists and other health care providers, as they might not dare risk their livelihood and freedom to provide patient care in a manner approved by Oregon voters. State of Oregon v. Ashcroft, May 26, 2004.

One of the three appellate judges hearing the case dissented, and would have approved the Directive. It is likely that the Supreme Court will be asked to resolve the dispute over Mr. Aschroft’s Directive.

Adequate control of pain, especially at the end of life, is a key issue in modern medical care. Increasingly doctors, nurses, patients, family members and advocates realize that death need not be physically painful. The most recent demonstration of that consensus among medical care providers comes from the Oregon Board of Medical Examiners.

Dr. Paul A. Bilder was disciplined last month by the state Board for failing to provide adequate pain control for six of his patients. This may be the first time an American doctor has ever been disciplined for providing too little medication, rather than too much; disciplinary proceedings for overuse of medication are relatively commonplace in medicine.

Dr. Bilder, a pulmonary disease specialist, agreed to the imposition of disciplinary measures rather than undergo a contested proceeding. He acknowledged that his undertreatment of pain “showed unprofessional or dishonorable conduct and gross or repeated acts of negligence. He will be required to complete a one-year peer-review program, visit a psychiatrist regularly and take a course on physician-patient communication.

According to the Board of Medical Examiners, Dr. Bilder failed to provide adequate pain control for at least six of his patients. Specifically, he:

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Treated an elderly man who was dying of cancer and in pain with “substantially inadequate amounts of pain medication,” contrary to a hospice nurse’s request for stronger pain drugs and anti-anxiety medication. He also refused a hospice nurse’s request to give the man a urinary catheter. Dr. Bilder told the board he thought the catheter would cause infection. The patient died of his cancer three weeks later.

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Ordered removal of a urinary catheter from a dying and incontinent cancer patient, against the wishes of the patient and family. Dr. Bilder told the hospice nurse to use diapers instead. Dr. Bilder ordered a small fraction of the pain medication the hospice nurse suggested, and Tylenol for high fever. He believed the nurse’s request for additional pain drugs was excessive. The patient died that evening.

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Stopped giving sedatives and pain medication to a 35-year-old woman with pulmonary disease while she was on a mechanical ventilator at Mercy Medical Center in Roseburg. He ordered a paralytic agent, which relaxes the breathing muscles to accommodate the breathing tube, without the use of sedatives. (Sedatives are often used to combat panic from having the breathing tube in the throat.)

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Refused a nurse’s request to give morphine to treat anxiety in a 63-year-old woman with pulmonary disease and diabetes who was put on a ventilator at Mercy Medical Center because of acute respiratory failure.

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Refused morphine or other pain medication for a hospitalized 82-year-old patient with congestive heart failure. The patient told a nurse, “I just can’t breathe, and I’m getting tired.” The patient became increasingly agitated, and his breathing and heart rates increased.

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Failed to give a 33-year-old pneumonia patient narcotic painkillers or anxiety medication while installing a breathing tube through the patient’s nose. The medical staff made multiple attempts to get the tube in, causing the patient’s nose to bleed. The staff had to restrain the patient to complete the procedure.

The issue of adequate pain control was raised by a national study, published in 1989, showing that more than half of seriously ill and hospitalized patients die in pain. Recently the debate over physician-assisted suicide has pushed doctors to provide better pain control in hopes that patients will be dissuaded from wanting to end their lives.

Although physician-assisted suicide has been much discussed in recent years, few legal developments have advanced the state of the law since Oregon voters approved an initiative measure in November, 1994. That changed dramatically this week, with two major developments. On Wednesday, a Federal Appeals Court ruled that Washington State’s ban on assisting with suicide is unconstitutional, at least as applied to “physician-aid-in-dying.” Then on Friday, a Michigan jury found Dr. Jack Kevorkian not guilty in his second criminal trial for allegedly assisting terminally ill patients to commit suicide.

Although the Kevorkian case is probably better-known, the Federal Court of Appeals decision is of far more significance, particularly in Arizona. The case, Compassion in Dying v. State of Washington, was decided by the Court of Appeals responsible for reviewing Arizona, California, Washington, Oregon, Nevada, Idaho and Montana laws. Since it is based on the U.S. Constitution, the case stands as precedent for all those states, at least until the U.S. Supreme Court rules otherwise.

The Compassion in Dying case began after Washington voters turned down an initiative measure on physician-assisted suicide. In spite of the election results, a group of Washington doctors formed Compassion in Dying, a non-profit group, to help terminally ill patients effectively and painlessly end their lives.

Compassion in Dying, its doctor members, and three terminally ill patients sued in Federal Court to invalidate Washington’s criminal statute on assisting suicide. The patients, all three of whom have since died, are described in the Court of Appeals decision by pseudonyms:

Jane Roe, 69, a retired pediatrician. Ms. Roe had suffered from cancer for six years, and the disease had metastasized throughout her skeleton by the time the lawsuit was filed. She was in constant pain, and suffered from swollen legs, bedsores, nausea, vomiting, impaired vision and other effects of her illness.

John Doe, 44, an artist suffering from AIDS. Mr. Doe had been diagnosed three years earlier, and had lost 70% of his vision, suffered from pneumonia, skin and sinus infections, seizures and extreme fatigue.

James Poe, 69, a retired sales representative suffering from emphysema. Mr. Poe was connected to an oxygen tank at all times, constantly felt he was being suffocated and took morphine regularly to calm his panic reaction. Like the others, he was in the terminal phase of his illness.

The Court, in an eloquent and thoughtful decision, found that the U.S. Constitution permits a competent terminally ill patient to have aid from a physician in ending his or her life. Washington’s statute (which is nearly identical to Arizona’s) is therefore invalid as applied to physician-aid-in-dying.

In reaching its conclusion, the Court assayed the history of suicide in ancient times and modern opinion. According to the Court, ancient Greeks, Romans and Christians viewed suicide as acceptable, particularly where the victim was ill and in pain. And public opinion polls show a dramatic shift on the subject in recent years: while 37% of respondents favored permitting doctors to assist terminally ill patients to commit suicide in 1947, more than half were in favor in a 1973 poll. By 1983, 63% favored physician-aid-in-dying.

Although there is no guarantee that the U.S. Supreme Court will rule on the question, an appeal to that court is expected.

Last November, Oregon voters approved a ballot initiative called the “Oregon Death With Dignity Act.” This first-of-its-kind legislation created a right to physician-assisted suicide in narrowly proscribed circumstances. Predictably, opponents filed suit claiming the Act violates the U.S. Constitution.

Earlier this month a U.S. District Court Judge in Oregon sided with opponents of the Death With Dignity Act. In a nine-page opinion, Judge Hogan ruled that the Act violates the Fourteenth Amendment by denying equal protection of the laws to terminally ill patients who may also be depressed.

Oregon’s law provided a mechanism for securing physician assistance with suicide only when the patient:

is terminally ill,

initiates the discussion about suicide,

waits at least fifteen days, and

is examined by another physician on referral by the attending physician.

Judge Hogan’s opinion striking down the Oregon law makes the point that a clinically depressed patient who attempts suicide normally will come under the purview of the state’s civil commitment laws. Under those laws (essentially similar to Arizona’s), the patient would be evaluated by two independent and qualified physicians. If the patient’s suicidal actions appeared to be the result of a mental disorder (including but not limited to depression), the state would intervene and protect the patient from harm, even though the patient may not choose to be so protected.

Under the Death With Dignity Act, however, the determination whether the patient’s wish to die is the product of mental disorder is made by the attending physician and another chosen by the attending physician. This, says Judge Hogan, means that the terminally ill and suicidal patient is not adequately protected from the possibility that he or she might be mentally ill. This is true, according to the Court, because the examination is undertaken by:

One physician and his or her choice of consulting doctor,

Neither of whom is required to be a psychiatrist or trained in dealing with mental illness.

Thus, according to the Federal Court opinion, Oregon’s Death With Dignity Act fails to provide adequate protection for those who are both terminally ill and mentally ill. Consequently, the Act must fail.

The result of this decision is a legal anomaly. In Oregon, where voters adopted a Death With Dignity Act, physician-assisted suicide is not available because of Judge Hogan’s ruling. In Washington state, however, where voters rejected a nearly-identical Death With Dignity Act, another Federal Court ruling has found that physician-assisted suicide must be made available to the same patients.

What state legislative body is the first to adopt a formal mechanism for permitting physicians to participate in the suicide of terminally ill patients? If you answered Washington or Oregon, you are wrong. If you broadened the definition of “state” and answered The Netherlands, you are still wrong.

Last week The Northern Territory, Australia (Capital: Darwin), by a 15-10 vote, became the first state with a legislatively-adopted provision which permits voluntary euthanasia. The new law is effective only when the following circumstances are met:

the patient must be over age 18, competent and suffering from extreme pain for which no further pain control measures are available.

the patient must initiate the request, and then wait seven days.

two doctors (one of whom must have psychiatric credentials) with at least five years experience each must certify that the patient is terminally ill and beyond medical help.

the doctors may not be related to one another by blood or business dealings.

both doctors must agree that the patient is not clinically depressed, and that he knows the effect of his decision on his family.

The new law does not specify the method of euthanasia which may be employed, but provides for adoption of regulations governing such questions.

Technically, the national government of Australia has the power to disallow the Northern Territory’s new law. Although the power is part of Australia’s constitutional framework, it has never been exercised before and observers do not expect it to be utilized in this case.

Although “physician-assisted suicide” has been adopted in Oregon, it was done by a voter referendum. Washington State’s year-old law was based on a federal court case declaring the prohibition of physician-assisted suicide to be unconstitutional. In The Netherlands euthanasia remains technically illegal, but the prosecutor’s office has adopted guidelines under which no prosecution will be mounted.

Elderly Living Alone

Elderly Americans are increasingly likely to be living alone, according to a newly-released survey. While 7.3% of seniors lived alone in 1960, over 30% were doing so by the late 1980s.

At least part of this growth phenomenon has been attributed to increasing divorce rates. Still, the largest force in the growth of the elderly living alone is the fact that women outlive their spouses by an average of nearly 7 years, coupled with the aging of the population.

Analysts predict that this continuing trend should result in dramatic increases in demand for assisted-living and home-based services.

An advantage of case management firms is that they have developed personal relationships with many professionals in the community and therefore have a larger network of caregivers and services at their fingertips.

The case management company should also be checked for experience and reputation in the community. Unfortunately, case management is relatively new. There are no licensure requirements. Presently, there are reputable organizations such as the National Guardianship Association and the National Association of Geriatric Case Managers that are in pursuit of accreditation. However, until a form of accreditation is in place, here is a list of questions you can ask in a phone interview:

How many years total experience? (More is better)

Who are the officers in the company?

What are the hourly fees?

Does the company have liability insurance? (A must)

Does the company have employee dishonesty insurance?

Does the company have a 24 hour on-call service? (A must)

Does the company have an RN on staff?

Is the company bonded?

Does the company offer personal financial services? (bill paying and insurance papers can become cumbersome)

Can the company provide local references?

Take your time in choosing caregivers and case managers. Don’t let a crisis situation rush you into making hasty decisions. Ask all the questions you can think of and continue to research the material. The good news is there are a lot of good caregivers out there and among them is the right one for you. After walking through the telephone book, include a phone call to your Area Agency on Aging. In Pima County call the Pima Council on Aging, 790-7262 and Senior Resource Network, 795-7480.

Assisted Suicide

A Federal Court judge in Seattle has ruled that the State of Washington may not prohibit physicians from assisting their patients to commit suicide. The judge, in a ruling handed down May 3, found that the U.S. Constitution requires the State to permit competent, terminally ill patients to seek medical assistance with the decision to end their lives.

The ground-breaking lawsuit was brought by Compassion in Dying, a non-profit organization located in Seattle and established for the purpose of assisting a select category of patients to end their lives. In order to receive assistance from Compassion in Dying, a patient must be fully competent, must have been diagnosed as terminally ill, and must have an attending physician willing to remain involved during the suicide. In addition to Compassion in Dying, the lawsuit was brought by three terminally ill patients (two of whom have since died) and four physicians who treat terminally ill patients.

The judge found that the individual’s right to privacy includes the right to end one’s life when terminally ill, and that the Constitution’s equal protection clause prohibits different treatment of the patient based solely on whether the patient is receiving life-sustaining treatment (which can be refused). An appeal is being prepared.

[Arizona’s assisted suicide law is very similar to Washington’s. Still, the ruling has no immediate effect on Arizona law.]